Marijuana magazines as porn rule declared unconstitutional by state attorney general

Last week, attorney David Lane, representing High Times and other publications, sued the state over a new marijuana-law provision that treats pot magazines like porn. Days later, the ACLU filed its own suit against the passage on behalf of newsstands and booksellers such as the Tattered Cover. Both parties were prepared for a fight but hoping to avoid one -- and to a large degree, their wish has come true. Colorado Attorney General John Suthers has determined that the edict is unconstitutional and won't go to court to defend it.

As we've reported, the law originally known as House Bill 13-1317 calls for "a requirement that magazines whose primary focus is marijuana or marijuana businesses are only sold in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present."

David Lane.

Constitutional concerns quickly arose over this edict, but it remained in the final version of the bill. Immediately after it passed, Lane sent an e-mail on the subject to Suthers. It reads in part, "My own personal belief is that this is a blatant First Amendment violation. It has apparently passed muster with the House and Senate and the governor will be signing it shortly. Please inform Governor Hickenlooper that if this is signed into law, he can expect a First Amendment law suit filed promptly."

Lane was as good as his word. The complaint, on view below, names as plaintiffs Trans-High Corporation, parent company of High Times, and two Colorado pubs, The Daily Doobie and The Hemp Connoisseur, also known as THC Magazine.

In the wake of the suit's filing, Lane told us the problems with the statute are "very, very simple.... The government cannot pick and choose which political messages they like and which political messages they dislike in the marketplace of ideas. The government has to stay completely on the sidelines, with very limited exceptions."

He added that "if the attorney general is smart -- and John Suthers is smart -- he will concede the point rather than fight about it and ultimately end up paying my exorbitant attorneys fees, which is what they'll do when they lose the case."

A photo from Tattered Cover's Facebook page.

The ACLU filing, also shared here, reiterated Lane's points from a different angle. "Would a special issue of Time magazine that's focusing on marijuana or the legalization movement or something about enforcement come within the purview of this new statute?" asked ACLU of Colorado legal director Mark Silverstein in a subsequent interview. "And if there were a magazine that was devoted to the potential dangers of marijuana and persuading kids they should stay away from it, would it have to be kept behind the counter, too?"

Silverstein thinks so. "The way the statute is written, it would require that kind of magazine to be kept behind the counter as well. And surely the legislature wasn't intending to shield kids from anti-marijuana educational materials."

Prompted by the suits, Suthers quickly looked at the provision -- and found it wanting.

Continue for more about Colorado Attorney John Suthers decision about the marijuana magazines as porn rule, including photos and documents. As seen in a document accessible here, the Attorney General's office was informed shortly after Governor John Hickenlooper signed HB 13-1317 that "the State Licensing Authority hereby finds that immediate adoption of this regulation is imperatively necessary to comply with state law and that compliance with the requirements of section 24-4-103, C.R.S., would be contrary to the public interest."

That meant Suthers needed to decide quickly if the passage met First Amendment requirements, and he ultimately sided with the publications and booksellers. A note from his office issued yesterday reads: "No magazine whose primary focus is marijuana or marijuana businesses is required to be sold only in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present, because such a requirement would violate the United States Constitution, the Colorado Constitution, and section 24-4-103(4)(a.5)(IV), C.R.S."

John Suthers.

Lane's reaction? He believes Suthers came to a conclusion that's both legally correct and smart from the standpoint of resources.

"The Department of Revenue has to enforce the law," he says. "So they got an emergency ruling, with the full blessing of the attorney general, that the provision is unconstitutional. So they adopted a rule saying it's unconstitutional and inconsistent with the Constitution of the United States."

This move certainly changes the potential tenor of a previously scheduled hearing this afternoon before federal judge Richard Matsch.

"Judge Matsch set the hearing before this ruling came down," Lane notes, "and we may still go through a status conference. Judge Matsch may want to know what mechanisms exist in the state system to prevent somebody down the road from changing their minds on this and implementing the legislation. I'd like to know the same thing."

He'd also like someone to explain to him "as a taxpaying citizen" how lawmakers could have allowed a passage so clearly at odds with the Constitution into such an important bill in the first place. As he puts it, "You would think a responsible adult in the legislature would have spoken up."

Will the state still have to pay Lane and the ACLU? "That's unclear at this point," Lane admits. "We filed a suit, and so did the ACLU," which he credits with helping to ramp up the pressure. "But then they, all by themselves, took corrective action. If it does cost the state money, though, it probably won't be more than a few hundred dollars. That's remarkably responsible on the part of John Suthers.

"I commend him on his recognition that this was unconstitutional, and for his quick action."

Here are the two lawsuits -- first the one filed by Lane, followed by the ACLU's complaint: